Hamilton Beach Brands, Inc. v. Sunbeam Products, Inc. (Fed. Cir. 2013)
In a split decision, the Federal Circuit has affirmed a lower court ruling that Hamilton Beach’s asserted patent claims are invalid under the on-sale bar of (pre-AIA) 35 U.S.C. 102. The patent at issue is U.S. Patent No. 7,947,928 and relates to a slow-cooker or crockpot. (I use it generically, but “Crock-Pot” is a brand whose trademark is held by Sunbeam.) The original specification focused on a pot with an integrated spoon in the lid. In the second-continuation, Hamilton Beach responded to Sunbeam’s new product by refocusing the claims on a pot with a latched top.
The priority application was filed in March 2006. More than one year prior (In February 2005), Hamilton Beach issued a purchase order for 2,000 slow cookers from a foreign supplier but to be delivered to its US warehouse. That order was confirmed by the supplier that same month and manufacturing would begin once Hamilton Beach provided its “release.” Hamilton beach did not provide the release until after the one-year critical date and no products were manufactured or sold until after that critical date.
The On-Sale Bar of (Pre-AIA) 102(b) will invalidate a patent when the invention was sold or offered-for-sale more than one year before the filing date. The trick here to finding an offer-for-sale is to think in reverse – the supplier is selling the products to the patentee. Thus, the commercial offer-for-sale occurs when the supplier says “we’ll make it once you give your release.” In patent law, an offer for sale is one where the other party only needs to accept in order to create a binding contract for sale. Here, the supplier’s confirmation satisfies that definition. As Judge O’Malley writes:
Hamilton Beach’s supplier responded prior to the critical date that it was ready to fulfill the order. In other words, the supplier made an offer to sell the slow cookers to Hamilton Beach. At that point, the commercial offer for sale was made and, under the governing corporate purchase agreement, Hamilton Beach could accept the offer when it so pleased. And, Hamilton Beach concedes, as it must, that, had it provided a “release” any time after it received that email, a binding contract would have been formed.
The statute requires that an offer for sale of the invention invalidates the patent and here, this offer satisfied that statutory requirement.
Writing in Dissent, Judge Reyna argued that the transactions should not be seen as a commercial offer for sale, but rather an experimental use.
The decision here is one that calls to mind the large literature on company structure. The patentee lost here because it chose to outsource manufacture in a particular way (through a purchase contract). Hitting on that point, Judge Reyna writes: “My greatest concerns involve the implications this case will have for future innovators, most notably small enterprises and individual inventors who lack in-house prototyping and fabricating capabilities.” Of course, it turns out that most US product companies (not just small enterprises) outsource some amount of manufacture.
You keep on asking questions Ned, and still have not given the citation for a holding as I have asked of you.
First things first Ned.
Anon, why is the invention on sale if you have your supplier manufacture the whole thing, but not if he manufactures all but a small, conventional part. Why is the invention not on sale if the inventor or his assignee internally manufactures commercial quantities, but does not actually put them on sale.
These are not just details. They tell us that something is not right in the State of Denmark.
Oddly Ned, my answer to your post at 1:27 has also disappeared.
I explored the attempt by you to distinguish commercial use and preparation for commercial use with sale and offer for sale.
But you should note that ‘preparation for commercial use’ fails in the instant case. As I have previously noted in this thread, the actions of development houses are ‘commercial’ for them – that is their commerce. Part of the no-supplier exception is a realization that commerce does in fact take place between businesses. If you read the dissent, this is an important factor to be mindful of. It is NOT that a sale (or here, an offer for sale) has taken place – that cannot be denied. It is how that sale (or here, offer for sale) is characterized. The dissent plainly believes that ‘magic words’ are not necessary (and magic words is what the majority mistakenly is looking for). The dissent plainly notes that at the critical time, there could be no ‘commercial’ offer for sale because at that time, the product was still in an experimental phase with leakage concerns being addressed. Volume is not material in this context. Timing at the state of readiness are the drivers (with or without magic words).
Your vacuous posts really do not count as a ‘move.’
@ta boy, Malcolm.
Fix Malcolm’s broken tag.
The retread projected fantasies of yours do not need to have detail added. Such only shows that you are dwelling on these things far too much.
You should instead dwell on the law that is really there. I suggest that you begin with the basics and learn the difference between copyright protection and patent protection. Knowing the difference is rather important if you really do have any clients.
Perhaps this comment will be allowed to remain (maybe I need to use more expletives):
You did not answer my question Malcolm – not in an intellectually honest manner. You reverted to a strawman, and the very strawman I had just identified.
Your projections of ‘mommy’ and ‘afraid’ consistently tell others of your own mental state. They say far more about you than you realize, and what they say is that you are rather deeply disturbed. Your choice of career is obviously something you should reconsider, as the angst of working with patents is something that deeply troubles you.
You have the same “must be the patentee” affliction that Ned is suffering from.
anon–
I still haven’t had time to go through this, or to even read the opinion.
But the point of granting time-limited rights is to give to the developer or his assignee the ability to maintain control.
That control is limited, as we now see in the denial of injunctions, but ultimately control is the operative concept.
Control of pricing and availability are two of the dimensions of control.
This is an economic phenomenon, except in the case of vanity patents. Developers develop things to improve their position, and obtain and enforce patents to curtail the positions of their competitors.
The goal of the mechanisms of control that patents grant, during the life of the patent, is an improved economic position. The control that enables that improvement is given in exchange for disclosure.
That is the quid pro quo, and there must be some contractual proportionality. A patentee is entitled to only what they are entitled to, and no more–hence the on-sale bar. The corollary is that a patentee should not give up anything in any situation in which they do not gain economically from the patent system.
This is most surely such a situation. The patentee is not profiting from this transaction, and the transaction should therefore not impact the bargain made by that patentee or patent applicant and the state.
And, anon does the patentee have a license to make when he is delivered drawings sufficient to make and use? I would hope so.
So, a sale of the invention occurs when the drawings are sold, but the sale is to the patentee. Obviously this does not make much sense the viewpoint of the policy of the law. Neither does it make much sense when the patentee orders a vendor to make products for the patentee. The policy of the law is to prevent the commercial use of the invention BY THE INVENTOR prior to filing a patent application. This policy is not impacted adversely by the patentee ordering drawings from a vendor, ordering components from a vendor and then assembling them, or ordering a completed product from a vendor. Such is not commercial use. Such is preparation for commercial use, which is not the same thing.
Your animosity is reflected in your attempts to hide that animosity.
LOL! Beyond parody.
Tr0 llb0y: You have made some critical mistakes of late though, voluntaring admissions that you have found that you cannot deny.
You have made some critical mistakes of late though, violating your parole and hanging around the elementary school again in your bathrobe behind the bushes.
Fun game, Tr0 llb0y. I look forward to your next “move.”
I noticed Malcolm that you completely sidestepped your mistreatment of development
I noticed that you violated the terms of your parole again. I don’t have a problem necessarily with the fact that you wear a bathrobe and hide behind the bushes near the elementary school but … plaid socks? C’mon, man. That just hurts the eyes.
I answered your questions directly and accurately, Tr0 llb0y. My answers to your questions aren’t “strawmen” but if you want to call them such, go right ahead (that would simply be another l i e that you habitually engage in, along with the l i e that I didn’t answer your question).
If you want a different answer, maybe you should ask a different question. Better yet, try to summon up your best English (get help from your mommy) and tell everyone what “theory” you think you are ”
“destroying” with your questions (previously asked and answered, many times over the years). Articulate that theory to the best of your ability. Go ahead, Tr0 llb0y. What are you afraid of?
Maybe you should ask your buddy Gene to help you. He’s supposed to be sort of smart, isn’t he? Did you ever run your “devastating” “analysis” by him? Please tell me that you did. Please, please, please. And show me the link so I can have a good laugh.
Sorry Ned, but both in my analogy and in Malcolm’s post, you are clearly wrong. With Malcolm, you had to change the facts and include a license to make – that is the gist of his not so subtle point that you want to gloss over.
The point, MM, is to illustrate that buying drawings from a draftsman can “sell” the invention just as much as buying products made from those drawings.
I noticed Malcolm that you completely sidestepped your mistreatment of development (and attempted to make the experiment doctrine disappear with a conjuring of ‘just file a provisional.’ While you say you understand development, your treatment shows that ‘understanding’ to be (yet another) 1ie from you.
You spin so much you have lost your sense of direction, and you don’t know which end is up.
Rather pathetic, really.
Yes. Of course.
@ta boy, Malcolm.
I see you retreat to your vacuous understanding of law Malcolm and your ‘famous’ WHATEVER line of reasoning.
It suits you.
Ned,
You do realize that you just admitted defeat in the analogy, right?
Ned – you need to understand what a holding is, and what you are pointing at is not a holding.
“Which “theory” are you referring to”
Maybe you should ask your svckie Francis.
More straw from you Malcolm – I just called you out for attempting to switch the topic to a strawman of ALL mental steps, and you slink right back to that strawman.
Try again. This time with some (any) intellectual honesty.
“I’m not a habitual l i a r, Tr0 llb0y.”
Actually Malcolm, that is precisely what you are. You have made some critical mistakes of late though, voluntaring admissions that you have found that you cannot deny. Admissions that expose the blatant 1ies that you have built your anti-patent agenda on.
Your ‘spin’ and deceipt are uncovered. Your animosity is reflected in your attempts to hide that animosity. Your evasion of any sense of intellectual honesty is your very undoing.
Just [shrug] and stand-by. Or better yet, get into a line of work in which you can believe in the work product, instead of it eating your soul.
anon, still it shows the fallacy of the Federal Circuit.
One can, I think, order component parts from suppliers and assemble them without putting the invention “on sale.” So why is it that having the supplier do the assembly any different?
Malcolm, if one sells drawings that enable the making of an invention to third parties, without any restriction on use, the invention is sold.
Obviously, if this applies as well to drawings commissioned by the patentee, it will lead to chaos as patent firms that use outside draftsmen will unexpectedly place their client’s inventions on sale.
Same principle as ordering physical embodiments. Wrong heading in the extreme.
Suppose the patentee sells the drawings to others with a license to make. How is that not selling the invention?
Okay, let’s assume that a patentee selling drawings along with the necessary license to make the objects depicted in the drawings is “selling the invention”.
What’s your point? That somehow that result is inconsistent with a different result based on completely different facts, which is a problem because … why?
Any insults towards you have been fully earned.
Of course they were, Tr0 llb0y.
Selling the map is not selling the world, of course.
Neither is selling the world selling the map.
Get it?
MM, let’s pull that cart an not push for a second.
Suppose the patentee sells the drawings to others with a license to make. How is that not selling the invention?
anon, but both do hold that only patentee sales count, not third party sales. Where do you not get it?
Ned: why is an apparatus embodying the invention any more “the invention” than drawings embodying the invention?
For the purpose of the on-sale patent bar in 35 USC 102, pre AIA? Maybe because contracting with someone to prepare drawings to sell to you isn’t remotely similar to the “sale of the invention” described in the patent claims. Of course, if you sit on the drawings and the artist makes the invention and sells it for two years prior to your earliest filing date, your patent rights are hosed. But maybe you can sue for breach of contract or something. Hooray!
Ned: if I sell you drawings illustrating the invention, and the manner of making and using it, haven’t I sold you the invention?
No, you’ve just sold me some drawings and information about how to make and use what’s in the drawings. That’s not the sale of “an invention” unless perhaps the “invention” is a new recipe book. A much better way to sell “an invention” is to file a patent application describing “the invention” and then sell the patent application or the patent. Or you can make the “invention” yourself and sell it.
Drawings are more enabling than a physical embodiment in most cases.
That depends very much on the invention being depicted. I’m not sure it’s true in most cases. I think probably it’s not true in most cases. That’s why people typically like to buy things that have been assembled by others.
nothing at all of substance.
LOL. Whatever, Tr0 llb0y.
that-which-you-do
I’m not a habitual l i a r, Tr0 llb0y. Thats’s your domain. It’s what you do. It’s your specialty.
I also don’t post pointless insults directed at anyone who has ever expressed a view that I disagree with, regardless of what they write. That’s your domain, Tr0 llb0y. It’s what you do. It’s one of your other specialties, on display here every day.
You’re invited to change your tune at any time, Tr0 llb0y. There’s a perfect opportunity presenting itself below. Maybe you can turn over a new leaf. Seriously, we both know that’s not going to happen.
Thanks Lyle,
I was referring to the actual statutory text (the law). I will check out your reference.
I have a claim comprised completely of [old steps].
That’s nice. We’ve been through this exercise before, Tr0 llb0y. Were you on different meds the last time? It’s odd that you seem to forget the answers every time.
Patent ineligible?
The answer depends on the steps. For example, an old process comprising only mental steps is no more eligible than a new process comprising only mental steps.
Per se patent ineligible?
No (see above).
Do you understand yet how this destroys your little pet theory
Which “theory” are you referring to, Tr0 llb0y? It might help if you articulated that “theory” so we can all see what it is that you think you are “destroying.”
Whole lot of mewling QQ there Malcolm with nothing at all of substance.
Try again (but without the spin). Maybe get Vivika M. to help you out.
That does not answer my question, Ned.
Ned – no, facts of a (particular) case do not (necessarily) a holding make.
The ball is still in your court.
end italics
Shorter Tr0 llb0y: “I refuse to answer the question.”
Here it is again for anyone who missed it:
Should purely mental processes be eligibile for patenting, Tr0 llb0y? Simple question for you. Would you support an amendment to 101 that explicitly barred purely mental processes? What about an amendment that barred processes which recited only anticipated steps followed by a new mental process. Would you support that amendment? If no, why not?
Tr0 ll0y refuses to answer these questions. While insulting everyone (including the Supreme Court) who dares to interpret 101 is Tr0 llb0y’s favorite pastime, somehow the act of coherently expressing his opinion regarding these simple questions is something that Tr0 llb0y just can’t manage. How curious.
dissembling as if this were a brand new question.
Yes you certainly are, Tr0 llb0y. What a t 0 0 l.
Anon, but I have. Metallizing and the Federal Circuit cases following it all require the sale be by the patentee to the public.
Anon, if I sell you drawings illustrating the invention, and the manner of making and using it, haven’t I sold you the invention?
You have to distinguish between the invention and embodiments. Drawings are more enabling than a physical embodiment in most cases.
On sale does not refer to embodiments, but to the invention.
IANAE, why is an apparatus embodying the invention any more “the invention” than drawings embodying the invention?
“Tr0 llb0y,” You keep calling me that
That’s right, Tr0 llb0y. Because you’ve trolled this blog for years, insulting everybody who you deem to be “anti-patent” occasionally including some rarely comprehensible horsesh*t but mostly not. For years you did your trolling while hiding behind and endless stream of s0ckpuppets, while pretending that you weren’t doing that (you were responding to a “vocal minority”, remember?). Then Dennis finally outed you. And of course there’s your endless l y i n g, bragging about “beatdowns” that you dream you are administering, the endless l i e s about the “answers” to your dumbaxx questions that you pretend that I never provide, and generally behaving like a m0 therflocking idjut who never found a patent he couldn’t fluff.
projecting your odd s3xual fantasies
As you know, these are not fantasies. It’s the truth, Tr0 llb0y. You “voluntarily admitted” that. And your admission is “archived” somewhere. Right? That’s the game you like to play, Tr0 llb0y. Just keep playing it. It’s what you do. It’s your speciality.
yes, your views are anti-patent. Plain and simple, that is an accurate description.
Because Tr0 llb0y says so. Just like Tr0 llb0y pretended for years that I had to be a patent examiner because “only a patent examiner” would dare question Tr0 llb0y about the awesomeness of a patent or a case that made it easier to obtain or enforce a patent.
Keep it up, Tr0 llb0y. You make Gene happy. You make a great team. That’s all that matters.
It only looks like horseh*t because I am rubbing your nose in your own sh*t.
Any insults towards you have been fully earned. I have told you how to limit these, but you must be willing to actually post in an intellectually honest manner.
And if you have trouble, you can phone a Friend(S) of the Court, or any of your dissembling ‘worst-thing-EVAH’ svckies that you incessantly QQ ed about yet indulge in that very activity (and yes, the word for you STILL: hyprocrite).
Malcolm,
I have a claim comprised completely of [old steps].
Patent ineligible? (note that I am not asking patentable)
Per se patent ineligible?
Do you understand yet how this destroys your little pet theory (you know the one, the one you tossed on a bonfire of your own making when you attempted for the first time to provide a substantive squaring of Prometheus with the case most on point, and then even refused to save your flaming ‘theory’ with your ‘mastery’ of English as a first language).
LOL
A direct reply is not possible since Malcolm messed up the tags, but above he askes “Should purely mental processes be eligibile for patenting, Tr0 llb0y? Simple question for you.”
The simple answer to the true Tr011’s question is twofold:
1) The question is a strawman, as NO ONE has ever questioned a purely mental process. This has been pointed out to Malcolm numerous times, and yet he insists on dissembling as if this were a brand new question.
2) ANTHROPOMORPHICATION. Machines do not in fact think. Yes, you answered in the opposite manner previously. But you were wrong then, and you are still wrong.
Try again, but this time with a little bit of intellectual honesty.
If I sell you a map of the world, have I sold you the world?
Question: “All, what is the difference from buying a completed unit and buying all but one insignificant part?”
Answer: Addressing the point under discussion and discussing an insignificant and rather lame strawman.
Again, Ned, you insist on have the patentee commercially use the invention, and yet you have failed to provide a single case that has as its holding that the it MUST be the patentee that issues the offer for sale.
Exactly like our discussion in the Myriad case, Ned, your inability to follow through with the legal points I make simply eviscerate your position. You simply are not making your case, and ignoring my calls to provide a holding is only shining the spotlight on your faulty position ever brighter.
Stay away from the lame strawmen and provide the case with the desired holding (if you can actually find one).
If having an outside draftsman make patent drawings for one places the invention on sale
If your “invention” is a set of drawings, your problems are already a whole lot bigger.
“Tr0 llb0y,”
You keep calling me that and ignoring my actual moniker, Malcolm, all the while acting like what you are accusing me of, and projecting your odd s3xual fantasies onto me.
Rather odd and disturbing behavior of yours.
And yes, your views are anti-patent. Plain and simple, that is an accurate description. Sorry that the truth hurts.
IBP,
The case deals with this by noting that the offer for sale and offer for purchase are two sides of the same coin, and the earliest date for which a contract could possibly happen (note, NOT actually happen) is the controlling date.
As I discuss herein, there is no doubt that a sale (or rather, an offer for sale) had taken place at the indicated date.
None.
For development houses, such is clearly their ‘commerce.’ The finer nuance here is does the term ‘in commerce’ truly apply – and to this, the dissent’s note that at the critical time there was still experiments ongoing to correct a critical leakage problem.
Ugh! You do seem to have had some bad experiences. But you do raise a point I hadn’t considered. If having an outside draftsman make patent drawings for one places the invention on sale (after all, there is no “supplier exception”) then the problems with this case just got a whole lot bigger.
Reading the AIA 102 Exam Guidelines at 78 FR 11063, the USPTO indicates a public offer for sale to qualify as prior art, but not a secret or private offer for sale.
All, what is the difference from buying a completed unit and buying all but one insignificant part?
Second, what is the difference from the case at hand and buying all the components from a supplier and then having the patentee assemble them.
Third, in the case where the invention claims a process, the patentee buys commercial quantities of supplies. Has the invention gone on sale?
All of this is wrongheaded, because in no case has the patentee commercially used the invention let alone sold anything TO the public.
I have never liked outside draftsmen–my experience with them has been terrible.
The best one yet was when somebody just digitized hand sketches, after having been told to draw them up in CAD, properly dimensioned, and sent me a bill.
You can imagine the fun I had. First, they denied that they just scanned the sketches! Incredible.
Beware outside draftsmen. I don’t use them anymore.
MM–
I’m not categorically disagreeing with you, but there are many purposes for, and types of, “prototyping”, which is an unfortunate term.
Filing a provisional might be one way to maintain some control, but it can also put you under the gun prematurely. It’s in no way a real solution to the problem, which is that the developer, by disclosing enough information to get a prototype made, has no intention whatsoever of giving up control of the development process to anybody, including the manufacturer of the prototype.
That’s why NDA’s, etc. are always used in such a relationship.
Consider that the offer is made under the umbrella of an NDA. What is the purpose of that NDA? To maintain control. The fact of the potential supplier or manufacturer making an offer to the developer, or to anybody else for that matter, does not evidence an intent by the developer to cede control of the development process.
Consider this slightly different legal construction of the same fact situation: it is the developer who makes the offer to purchase x units of widget A, and the manufacturer who accepts by whatever means, like actual delivery by a certain date. There is now no offer for sale, but an offer for purchase.
Logically, why should the developer suffer a penalty under one construction, but not under another, for exactly the same commercial transaction? Yes, there may be a penalty when the contract is completed upon delivery as an actual sale, but that happens at a completely different time, if ever, and so is a totally different consideration.
What is it about the character of the manufacturer’s actions in making the offer that merits such a penalty to the developer? Nothing.
There is an answer somewhere in contract law, I just haven’t put my finger on it yet, because I haven’t had time. But I will.
Next, the genius Federal Circuit will apply this case to drawings showing the invention made by outside draftsmen.
IBP: There is no clause that I have ever seen that successfully dictates that offers of sale made to anybody will be null and void with respect to 35 USC.
Right. So it’s a pretty good idea to file that provisional application first before disclosing your invention to anybody. Of course it should be the best provisional application that you can prepare and file, given whatever constraints exists (budget, time) etc.
If their entire position in the bargain can be undermined by the actions of a third party, over whom they have no or insufficient control, then there is much less reason for them to even participate in the game.
File the provisional application describing the prototype you want developed first. If the issues is that the third party might contribute to the actual (enabled, working, useful, new) invention well… I think the law has ways of addressing that circumstance as well.
I agree. A company should be able to out-source production without triggering an on-sale bar where the company is only obtaining its “own” product from the supplier.
However, apparently Judges O’Malley and Bryson on the Federal Circuit disagree. They think it constitutes a “sale”. Obviously money changed hands to cover the costs of production.
And in this case, the potential supplier’s mere offer (which is totally out of the inventing company’s control) triggered the bar. It wasn’t as if the inventing company (Hamilton Beach) was the one who had first approached the supplier to make the product; although it is unclear how the supplier got wind of the new invention in order to be ready to make the offer. However, even if Hamilton Beach had refused the offer, the offer was made and the bar would exist.
The lesson: keep your inventions secret, even from your potential outsource suppliers, until the patent application is filed.
MM–
I will first answer your specific question, and then address patent policy in general.
To your specific question: if someone came to me with bull like that–and they have–I would immediately ask them on how they know what the filed claims were going to be, and on what basis they believe that they would be allowable. Your scenario presumes someone else has done that work. If they hadn’t, I wouldn’t progress to the second part of your answer at all, I would require that I perform a proper search before moving ahead at all with any further work or hypothetical discussion.
Yes, that is how I do things, and it works well for me.
If someone had done that work, your question becomes one about opinion practice. I have my own views on that type of practice, sometimes I do it, sometimes I don’t, depending on the precise nature of the legal issues involved, and on my perceived quality of the statement of facts.
In the abstract, however, I would ask why those were the only 2 identified options. How about waiting until good claims were drafted, and doing that drafting asap and filing a non-provisional?
What the heck do they think they are doing asking about provisionals, when they are “sure” that it is patentable? How can they be sure it will be patentable if they don’t yet even know what the claims will be? Rubbish.
“Best”? Best for what? There are more than 2 options. Risk is always related to potential reward in the first instance, and in practice, relies to a great extent on risk management. There is no one-size-fits-all answer to your question: it depends on who they are, where they exist in the market, what that market is, how they want to conduct business, how much and what types of resources they are willing to bring to bear on this project, how they have managed similar projects in the past, if at all, and what their experience was, the specific nature of the technology, how necessary and to what extent, prototyping is, etc.
“Best”, even from a strictly legal point of view, depends on these practicalities, because again, those are never the only 2 options.
******************88
Patent policy in general: the whole point is to encourage the development and dissemination of products, methods, and designs, from those developers to general society.
“General society” is any entity that is at arms-length from the developer. CA’s and NDA’s are used to eliminate that distinction, to bring all relevant entities under an umbrella, but they are not an exhaustive list of how that may be achieved.
In order for potential developers to find the current quid-pro-quo at all inviting, they must perceive that they have a certain amount of power in the process, and that the process is knowable and non-arbitrary. If their entire position in the bargain can be undermined by the actions of a third party, over whom they have no or insufficient control, then there is much less reason for them to even participate in the game.
How much control do they have over prototypers? They have contractual control, over things like disclosure. Is there any possible way they could control the making of an offer by that third party, while still engaging in the disclosure required to enable required development? No. There is no clause that I have ever seen that successfully dictates that offers of sale made to anybody will be null and void with respect to 35 USC.
Without this control over development, the policy of development and subsequent dissemination is not at all served.
Tr0 llb0y: You do realize that prototypes are often built during development, right? You are aware of what ‘development’ means, right?
Yes, Tr0 llb0y. We all understand that.
real world experience
Right, like the “real world experience” you got watching anime in your mommy’s basement before they hauled you to the hospital.
Your innate animosity to all things patent
You keep reciting this strange mantra, Tr0 llb0y, even as you habitually demonstrate your own “innate animosity” to anyone who doesn’t fell-8 patents with your special brand of gusto.
I don’t have animosity towards “patents”. I do have a problem with an inept PTO, lazy judges, and greedy a–0les who relentlessly exploit weaknesses in the system for their own selfish purposes while simultaneously shrieking that patents are too hard to obtain and enforce. This has all been explained to you before. Now run along and polish Gene’s buttons like a good p uppy.
end italics
we deal with non-explicit (i.e. implicit readings of ‘what Congress said’ by the Court in 101 jurisprudence.
Oh, the horror! The horror!
As if that Tr0 llb0y and his cohorts would suddenly stop soiling themselves if only the statute were amended to explicitly state the holding in, e.g., Prometheus.
Should purely mental processes be eligibile for patenting, Tr0 llb0y? Simple question for you. Would you support an amendment to 101 that explicitly barred purely mental processes? What about an amendment that barred processes which recited only anticipated steps followed by a new mental process. Would you support that amendment? If no, why not?
Let’s watch Tr0 llb0y spin like the shiny top that the nuthouse wards had to take away from him.
Come Malcolm, you disappeared from our conversation last weekend. What’s the matter?
Uh … I took a little vacation by the beach like many people do this time of year. I realize that’s difficult for an institutionalized d*psh*t like you.
Also, whatever “conversation” you are referring to, I’m sure it amounted to little more than you spewing your usual horsesh*t and insults.
“before contracting with a third party to make a protoype”
LOL – Malcolm your utter lack of real world experience in things actually manufactured is showing. You do realize that prototypes are often built during development, right? You are aware of what ‘development’ means, right?
I realize that to you, this sounds like (gasp) an advantage to a patentee (which to you must then lead to the ‘worst thing EVAH.’
I implore you to get into a field in which you can believe in the work product you produce. Your innate animosity to all things patent is showing again.
“Can we get more clues, 6?”
LOL – seeking clues from the clueless.
The irony of the Malcolm Fail is hysterical.
“He’s also a s0ci0path and a habitual l y i n g t00l.”
Y A W N
More of the typical Accuse-others-of-that-which-you-are from Malcolm.
Come Malcolm, you disappeared from our conversation last weekend. What’s the matter? Your agenda exposed and your fallacious ‘theories’ burnt to a crisp?
LOL
IBP Not only does this decision sound badly in policy, I suspect it also sounds badly in law
What’s “wrong”, “ridiculous” or “disgraceful” about a policy (or law) that encourages inventors to file patent applications before contracting with a third party to make a protoype?
Before this case, if a client came to you and said that they had invented a new device which would ultimately be covered by an as-yet-unfiled patent. Specifically, they wanted your opinion as to whether it would be best to prepare and file at least a provisional patent application on the device (a) immediately or (b) wait until after they had disclosed the device to one or more third parties prior to engaging one of the parties to build a prototype.
How would you have advised them?
Said a man with 0 legal training and who doesn’t even appear to be involved with patent law in any way shape or form other than being a wanna be inven tard.
He’s also a s0ci0path and a habitual l y i n g t00l.
Can we get more clues, 6?
Not only does this decision sound badly in policy, I suspect it also sounds badly in law.
I will go through it and find out how.
At first glance, ridiculous, like another poster said.
But more than that, probably disgraceful and embarrassing.
Thanks 6 – for at least acknowledging the fact that what you asked for (“they should make that explicit“) is not even done for the first – and supposedly wide open – gate of patent law, while ignoring the point I raise about the ‘complexity’ of the word “any.”
That’s a real big contribution, considering the source.
“Who is ‘they?’ Congress?”
Yep.
“And yet, we deal with non-explicit (i.e. implicit readings of ‘what Congress said’ by the Court in 101 jurisprudence.”
Yep.
Ned,
Still waiting for that proper citation to a holding that the sale or offer for sale MUST be by the patentee.
“they should make that explicit in the lawl”
LOL,
Who is ‘they?’ Congress? The Court? We both know exactly which branch of the government (and only one branch was so authorized) to actually write patent law. And yet, we deal with non-explicit (i.e. implicit readings of ‘what Congress said’ by the Court in 101 jurisprudence. If you think ‘commercial’ is not a particularly complex word, how do you feel about he word ‘any‘?
Agreed – with the one year ‘protection’ already paper-thin, one must race first to the Office.
“Under the AIA, the offer to sell or sale must be public”
Check again, jcvillar. There is no “offer to sell” as prior art under the AIA.
None.
Under the AIA, the offer to sell or sale must be public. This was not so under pre-AIA law, where even secret sales are a statutory bar.
Pfaff v. Wells? In Pfaff, it wasn’t even necessary that the actual working product design exist so long as there was enough info to file a patent. Take Pfaff and combine with this case and you have the new AIA scenario where you better not even THINK of discussing the new device with even a potential supplier until you’ve filed a provisional on it.
In the same vein as Pfaff v. Wells, 525 US 55 (1998), don’t you think?